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II. Openness: A New Approach to Foreign Policy

On his first full day in office in December 2000, President Vicente Fox made what would prove to be one of the more significant gestures of his presidency: he signed a cooperation agreement with the U.N. High Commissioner for Human Rights (UNHCHR).  Under the agreement, the Fox administration committed itself to collaborating with the UNHCHR’s office to assess and improve Mexico’s human rights practices. What makes that agreement seem so significant now is not so much the fruits of that collaboration—though these have indeed been valuable in themselves—but, rather, the fact that Fox signed such an agreement at all.  For with that first act of his foreign policy, the new president revealed that Mexico was embarking upon an entirely new approach to international relations—and, with it, an entirely new way of handling human rights.

Mexico had embraced human rights causes in the past.  It had signed and sometimes ratified international rights treaties.  It had provided a safe haven to refugees fleeing murderous regimes in Central America, as well as to exiles from the Southern Cone whose politics had earned them de facto death sentences back home.  And its leaders had regularly professed their commitment to respecting the rights of their own citizens.

But this public embrace of human rights had not translated into the respect of human rights at home.  Even as it subscribed to the treaties, Mexico pursued policies that blatantly violated their basic tenets.  Even as it sheltered other countries’ dissidents, Mexico silenced, persecuted, and in some cases even slaughtered its own.  Even as it professed its commitment to protecting rights, Mexico built its foreign policy around a radical interpretation of a principle that rendered this commitment largely meaningless—the principle that states and international actors should not interfere in the internal affairs of sovereign nations even in the face of serious human rights violations.

Under President Ernesto Zedillo, Mexican foreign policy began to change.  Mexico accepted the jurisdiction of the Inter-American Court of Human Rights.  It invited international monitors to visit and report on the country, and engaged in preliminary discussions with the UNHCHR’s office regarding the cooperation agreement that Fox would eventually sign.  And it showed increasing willingness to discuss human rights abroad.  In a 1999 summit in Havana, for instance, President Zedillo advocated increased democracy in Cuba: “Today more than ever,” he said, “sovereignty also needs democracy.”

Yet, even under Zedillo, Mexico never abandoned the position that respect for state sovereignty was more important than the protection of basic rights.  Zedillo’s bold comment in Havana was quickly followed by a public assurance from his office that Mexico had not abandoned its commitment to noninterference in the internal affairs of Cuba.  His government’s talks with the UNHCHR’s office were effectively shelved and only renewed by Fox’s transition team.  The Zedillo administration’s invitation to international monitors was followed by its open rejection of those monitors’ recommendations, expulsion of some foreign rights advocates, and imposition of onerous travel restrictions that limited the ability of foreigners to engage in human rights work within Mexico.  So if Mexico under Zedillo had finally opened the door to international scrutiny, it was only a partial opening.  The government still guarded that door jealously, always ready to slam it shut at the slightest perceived provocation. 

Upon taking office, President Fox effectively threw the door wide open.  His first foreign policy act—signing the agreement with the UNHCHR—was soon followed by another, similar one: he announced the lifting of the travel restrictions that had been used to limit foreign advocates’ access to the country.  And in his government’s first appearance before the U.N. Commission on Human Rights several months later, his foreign minister, Jorge G. Castañeda, extended a permanent invitation to all the U.N.’s special rapporteurs to visit Mexico and evaluate the country’s human rights practices.

If this invitation resembled the one offered by the previous administration, the international community had more reason now to believe that Mexico really meant it.  Along with the invitation, the foreign minister declared before the U.N. Commission on Human Rights that Mexico regarded human rights as universal and absolute values that surpassed national sovereignty in importance.  And these words were backed up with concrete actions.  The administration created the new post of Under Secretary of State for Human Rights and named a prominent human rights advocate to fill it.  It expressed concern about Cuba’s human rights record at the 2001 session of the U.N. Commission on Human Rights and voted in favor of a resolution against Cuba the following year.  It endorsed the principle of universal jurisdiction for human rights violations by authorizing the extradition of an Argentine to Spain to face charges for violations committed in Argentina over two decades earlier.   And, after September 11, it became a forceful advocate for the promotion of human rights in the context of the “war on terrorism,” voting in favor of resolutions that condemned U.S. actions in Guantanamo Bay, and pressing successfully for the creation of a human rights and terrorism post within the UNHCHR’s office.

In short, what convinced the international community that Mexico was ready to engage on human rights issues was its foreign policy.  In addition to the foreign affairs minister’s public invitation, there was also a simple calculus at work: a country that aggressively advocates human rights abroad effectively forfeits the sovereignty card as a shield to international scrutiny of its own practices.  For governments unwilling to address their rights problems, this is an obvious liability.  But members of the Fox administration approached it as an opportunity—promoting human rights abroad would make it harder for the country to ignore its rights problems at home.

Indeed, Mexico not only welcomed international scrutiny, in some cases it actively sought it.  After Mexican nongovernmental organizations (NGOs) denounced the botched investigation into the death of rights activist Digna Ochoa, the Fox administration invited a specialist from the Inter-American Commission on Human Rights (IACHR) to evaluate the investigation.  After the outcry over ongoing impunity for the murder of women in Ciudad Juárez, it actively encouraged international monitors to examine the problem.  And when it came time to renew the collaborative relationship with the UNHCHR’s office, it committed itself to something even more radical—the government would work with the U.N. representatives to develop a comprehensive evaluation of Mexico’s human rights problems that would serve as the basis for a national human rights program aimed at addressing them. 

By the time the UNHCHR signed this second agreement, the Fox administration had essentially inverted the doctrine that had guided Mexican foreign policy for decades.  It had scrapped the old defensive posture that had aimed to shield Mexico from human rights norms and replaced it with a proactive foreign policy that used engagement with the international human rights system as a catalyst for change within Mexico. 

Did the strategy work?  Has the new foreign policy brought any improvement in human rights practices within Mexico?  The answer, so far, is partly yes, but largely no.  Mexico has signed and ratified important rights treaties.  Yet the Congress has insisted on attaching reservations and interpretations that contradict and undermine the potential impact of some of these treaties (as in the case of the efforts, discussed in Chapter 4, to prosecute former officials for abuses committed during the country’s “dirty war”). Mexico has also passed new legislation that explicitly reflects international norms in a variety of areas.  Yet it has failed to create adequate implementing mechanisms for these new laws, or to modify laws that were already on the books.  And it has failed to pass two of the most important bills of this sort—a reform of the Constitution that would clarify the hierarchy of international obligations in domestic law, and a reform (discussed in Chapter 5) that would address the grave deficiencies of the justice system.  Mexico has developed a comprehensive National Human Rights Program based on the evaluation elaborated in coordination with the UNHCHR’s office.  Yet this program failed to incorporate many key recommendations of that evaluation, while implementation of those it did include has only just begun. 

Mexico’s human rights NGOs, whose advocacy over the years largely paved the way for this change in foreign policy, have successfully seized upon the opening to draw increased international attention to the specific cases and general problems they work on.  These local rights advocates have used the heightened international scrutiny to secure concrete results, including the release of wrongfully imprisoned individuals, in several important cases.  Yet, despite these successes, they continue to encounter a deep and abiding resistance on the part of many authorities to changing the policies and practices that gave rise to the cases in the first place.

The considerable work that remains to overcome this resistance and changes these practices does not fall within the ambit of foreign policy.  It is now up to the other government ministries, as well as the other branches of government, to do their part to address the problems that have been more thoroughly exposed and analyzed these past few years.  Yet openness to international scrutiny will continue to be important for exposing issues and complementing the efforts of local rights advocates to generate pressure for change.

The Old Closed-Door Policy

Human rights have long been an important component of Mexican foreign policy.  But, until recently, the reason they figured there was not because they were a priority, but rather because they were seen as something that was “foreign,” a potential threat to the interests of the country—or, more precisely, a threat to the interests of the regime that governed it.  Even during the Zedillo administration, when Mexican foreign policy began to change, Mexico was generally reluctant to promote human rights abroad, and was adamant in rejecting criticism from international actors regarding its own human rights problems at home.

The old regime relied on the principle of noninterference to justify this “don’t ask don’t tell” approach to international human rights. It insisted on a dogmatic reading of this principle, according to which foreign entities, be they states or international monitoring bodies, had no standing to involve themselves in the internal affairs of sovereign nations.

When, for example, Human Rights Watch published a report on state responsibility for rural violence in Mexico in 1997, the Mexican Foreign Affairs Ministry criticized the “curious timing” of the report, noting that former U.S. President Bill Clinton planned to visit Mexico two weeks later.  According to the Mexican government, when Human Rights Watch asked President Clinton to mention the need to end impunity for political violence in Mexico during his visit to Mexico, “[it seemed] to forget that Mexico is a sovereign country and therefore, that it does not receive instructions from any foreign government at all.”¹

The Zedillo administration also imposed restrictions on human rights activists’ ability to visit Mexico.  As of May 1998, the government required visa applicants from human rights organizations to produce extensive documentation including a Spanish-language version of their organizations’ by-laws and letters attesting to their moral rectitude.  A list of all locations to be visited had to be provided to the government at least thirty days in advance of the trip, a requirement that prevented human rights monitors from visiting Mexico during emergencies.  The specificity of the requirements meant that human rights investigators would be prohibited from traveling to communities that they did not list on their visa applications, a serious impediment to investigators who needed to follow the leads encountered during research missions.

On several occasions in 1998, human rights defenders were prohibited from traveling to Mexico because Mexican consular officials, or their colleagues in Mexico City, appeared unwilling or unable to process visa requests.  A lawyer from the Washington, D.C.-based Center for Justice and International Law (CEJIL), for example, was forced to cancel her participation in a human rights seminar she was to lead.  Another was given a visa at the last minute that permitted her to do only a small portion of what she had planned—and requested—to do. 

In addition to making it difficult to enter the country, Mexico also expelled foreign rights advocates from the country on several occasions.  In June 1995, three priests from Argentina, Spain, and the United States were expelled for engaging in activities related to the defense of human rights in Chiapas.  In April 1997, two members of the International Human Rights Federation who had been invited by NGOs in Mexico to investigate reports of human rights violations in the states of Guerrero, Oaxaca, and Chiapas, were expelled after they visited a prison in Acapulco and took the testimonies of torture victims.²   In February 1998, a U.S. citizen who directed the Mexico Solidarity Network was expelled.  A group of NGOs reported over one hundred other cases of rights observers being expelled from Mexico in 1998.³ 

The formal justification for expelling foreigners was that Article 33 of the Mexican Constitution grants the executive the authority to make all foreigners “abandon the national territory, immediately and without prior trial” if the president considers that their presence is “inconvenient.”  That same article also says that “foreigners may not, under any circumstances, interfere with political issues in the country.” 

When questioned by the IACHR, the Mexican government justified some of these expulsions on grounds that the foreign rights advocates had “interfered in the internal affairs of the country.”⁴   

A New Approach to Foreign Policy

Promoting Human Rights Abroad

Under President Fox, Mexico has presented to the United Nations and the Organization of American States (OAS) several initiatives related to human rights, including proposals related to the protection of migrants’ rights, the rights of indigenous peoples, the rights of handicapped people, and women’s right to land, property and inheritance.  For example, Mexico has played a very important role in the recent adoption by a U.N. working group of a draft International Convention for the Protection of all Persons from Enforced Disappearances.⁵

In October 2002, Mexico successfully proposed the establishment of a mechanism to monitor compliance with the Inter-American Convention to Prevent, Sanction and Eradicate Violence Against Women (the “Belém do Pará Convention”).⁶  Mexico has also emphasized the importance of having a mechanism to promote compliance with the decisions of the Inter-American Court of Human Rights.  Although the Court’s decisions are legally binding, there is currently no mechanism to ensure compliance with its decisions.  Until now, there has merely been a reference to the need to create such a mechanism in an OAS General Assembly resolution.⁷

Mexico has played a crucial leadership role in promoting international resolutions and standards concerning the protection of human rights when states adopt counterterrorism measures.  For example, Mexico presented a draft resolution, which was unanimously adopted by the U.N. General Assembly in December 2002, on the protection of human rights and freedoms in the fight against terrorism.⁸  The Mexican Ambassador before the OAS presided over the working group that drafted the Inter-American Convention against Terrorism, which was adopted and signed by thirty of the thirty-four member states in June 2002.⁹  

Mexico has promoted the creation of an international structure to monitor compliance with international standards on human rights and counterterrorism.  Thanks to pressure from Mexico, the U.N. Counter Terrorism Committee’s Executive Directorate now includes a “Human Rights, Humanitarian, Asylum Law Officer.”¹⁰  Mexico has also led the initiative to get the U.N. Commission on Human Rights to appoint an independent expert on counterterrorism and human rights, an initiative that was approved by consensus in April 2004.¹¹  Based on the report of this independent expert, as well as the reports of other U.N. bodies, the U.N. Commission on Human Rights decided in April 2005 to appoint a special rapporteur on the promotion and protection of human rights and fundamental freedoms, who has a three-year mandate to oversee compliance with international norms on this topic.¹²   

To complement the creation of international standards, Mexico has also promoted the consistent application of these standards to all governments that violate human rights.  A paradigmatic example is how, starting with the Fox administration, the Mexican government decided to vote in favor of resolutions by the U.N. Commission on Human Rights that criticize the human rights situation in Cuba.  After years of abstaining from voting, or voting against the Commission’s resolutions on the human rights situation in Cuba, in 2002 Mexico began voting in favor of condemning the Cuban government’s human rights abuses.¹³  The Mexican government has also voiced concerns at the OAS over the human rights situation in Cuba.¹⁴ 

At the same time, Mexico has criticized human rights violations by the U.S. government in Guantanamo Bay.  In April 2005, Mexico was one of the eight countries that voted in favor of a draft resolution at the U.N. Commission on Human Rights that requested the U.S. government to authorize an impartial and independent fact-finding mission by U.N. representatives on the situation of detainees at the U.S. naval base in Guantanamo Bay.  The resolution was rejected by twenty-two votes to eight, with twenty-three abstentions.¹⁵

Mexico became the first Latin American country to extradite someone for gross human rights violations under the principle of universal jurisdiction.  In 2001, the Mexican Foreign Affairs Ministry approved the extradition of Ricardo Miguel Cavallo, an Argentine military official accused by Spanish courts of genocide, terrorism, and torture for acts committed during the military dictatorship in Argentina between 1976 and 1982.  After an appeal, in 2003, the Mexican Supreme Court upheld the extradition order on charges of genocide and terrorism, though not on charges of torture. 

Mexico has also used international mechanisms to defend the human rights of its citizens.  In January 2003, it brought a case before the International Court of Justice against the U.S. government for violating the right to consular notification of Mexicans on death row in the United States.  In March 2004, the court ruled against the United States, arguing that it had failed to inform fifty-four Mexicans arrested on capital charges of their right to talk to their consular officials, and ordered U.S. courts to provide an effective review of the convictions.¹⁶

Finally, Mexico has contributed economically to the Inter-American system of human rights.  Aside from the budgetary contributions to the OAS, since 2001 the Fox administration has provided extra “voluntary funds” (US$225,000 in 2005, for example) to the Inter-American Commission and Court.¹⁷

Openness to International Scrutiny

The Fox administration’s public repudiation of the dogmatic and self-serving use of the noninterference doctrine was backed by a wide range of concrete measures aimed at encouraging international scrutiny of the country’s rights practices.  

One of the most significant of these was the signing of a cooperation agreement with the UNHCHR on the day after President Fox took office.  Former president Zedillo had signed a memorandum of understanding with the UNHCHR at the end of 1999, but negotiations over the actual agreement were suspended until after the 2000 elections.  Once Fox was elected president, his team moved forward with negotiations, which culminated with Fox’s signature of the agreement in December 2000.

As a consequence of this agreement, the UNHCHR established an office in Mexico City, with the purpose of assessing the structural deficiencies that impeded the full realization of human rights in Mexico, and determining what reforms were necessary to promote change.  During the first phase of this project, the UNHCHR focused on capacity building of public officials and civil society members on the issue of how to combat torture.

The Fox administration signed a second agreement with the UNHCHR in April 2002, initiating a second phase of collaboration in which the U.N. office would work with a team of Mexican experts to produce a National Diagnosis of the Human Rights Situation in Mexico (Diagnóstico sobre la Situación de los Derechos Humanos en México).  The diagnosis, which was concluded in 2003, provided a comprehensive assessment of the human rights situation in Mexico and a detailed series of recommendations that would serve as the basis for a national human rights program. 

To follow-up on the recommendations set out in the diagnosis, the U.N. office in Mexico has since carried out a series of projects to improve the human rights situation in Mexico, focusing mainly on the problem of use of torture, the need to strengthen civil society, and the protection of rights of members of indigenous communities.¹⁸       

In addition to the collaboration with the UNHCHR, Mexico signed a cooperation agreement with UNESCO in 2002 to promote public policies related to human rights and a human rights culture in Mexico.  Mexico also signed a cooperation agreement with the European Commission in 2004 to improve local knowledge of human rights and the mechanisms to protect them, and to harmonize national human rights policies and laws with international standards and obligations.¹⁹

The Fox administration has also engaged actively with the Inter-American system of human rights in a variety of ways.  In addition to the open invitation that it extended to the O.A.S. Special Rapporteurs, Mexico also invited, in an unprecedented move, a specialist from the IACHR to evaluate the work of the Attorney General’s Office (Procuraduría General de la República, PGR) on a high profile case involving the death of human rights activist Digna Ochoa.²⁰  Twenty-one months after Ochoa had been found dead in her office in October 2001, the PGR announced that it had concluded its investigation and had found no evidence that a crime had been committed. In response to vocal criticism by the Ochoa family and local rights advocates regarding the PGR’s handling of the case, the Fox administration decided to invite someone from abroad to perform an objective evaluation of what had taken place done.  The resulting report criticized the flaws and omissions in the PGR investigation.²¹

The Fox administration has also actively addressed cases before the IACHR, seeking friendly settlements in several instances.  For example, in the case of Alejandro Ortiz Ramírez, who was given a forty-year prison sentence after he was tortured to confess that he had committed murder, in December 2004 the Mexican government signed a friendly settlement and publicly recognized his innocence.²²  Also, in March 2006, the Fox administration signed a friendly settlement with Paulina Ramírez, who, in 1999, at age 13, had been denied access to a legal abortion in her home-state of Baja California Norte.   In the settlement, the Mexican government recognized that Ramírez’s rights had been infringed, and agreed to push for reparations.²³

In addition to its engagement with international human rights bodies, the Fox administration has been far more receptive to scrutiny from NGOs than any previous Mexican administration.  In December 2001, it eliminated the 1998 travel restrictions that the previous government had used to regulate foreign advocates’ access to the country.  As a result, international rights advocates could travel to and around Mexico more easily, and they were no longer expelled from the country because of their work. 

In general, the Fox administration has demonstrated much greater willingness to receive criticism and discuss recommendations by international actors.  This receptive attitude, combined with its active promotion of human rights abroad, has encouraged international monitors to take Mexico up on the general invitation to visit the country.  The number of visits by international human rights monitors to Mexico has dramatically increased since Fox took office.  Prior to 2000, only four monitors had conducted missions to Mexico.  During the Fox presidency, the country received fourteen such missions from representatives of the United Nations and the OAS²⁴   

Harmonization Efforts

Mexico’s new foreign policy has generated new tools for promoting rights in Mexico.  These include the country’s new treaty obligations, as well as the extensive recommendations from international monitors regarding how to fulfill them.  But for these obligations and recommendations to have an impact, they must be made part of the daily activities of the state institutions that have the authority to carry them out.  The Fox administration has had only limited success in making that happen.

Ratification of International Human Rights Treaties

Before the Fox administration, the Mexican Congress had already ratified some important human rights treaties, such as the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the Convention on the Rights of the Child.  The Fox administration has made a concerted effort to increase the number of international instruments that impose human rights obligations on the state.  Since 2000, Mexico has ratified fourteen international treaties that protect human rights since.²⁵  These include the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which had been signed in 1969 and was ratified in 2002; the Rome Statute of the International Criminal Court, signed in September 2000 but not ratified until 2005; and the Inter-American Convention on Forced Disappearance of Persons, signed in May 2001 and ratified in 2002.²⁶

Unfortunately, the Fox administration has itself undercut the value of these ratifications by allowing the Senate to attach interpretative declarations and reservations that limit the treaties’ impact in Mexico.  For example, when Mexico ratified the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity and the Inter-American Convention on the Forced Disappearance of Persons, it included “interpretative declarations” to the effect that the conventions would only apply to acts committed after the treaties entered into force (i.e., after 2002).  In practice, as we describe in detail in Chapter 4, the declarations have increased the difficulty of using these instruments to promote accountability for past human rights abuses in Mexico.  Similarly, when Mexico signed the Inter-American Convention on the Forced Disappearance of Persons, it attached a reservation to the effect that members of the armed forces charged with forced disappearances would be tried in military courts for illicit acts they commit while on duty.  This reservation contradicts the purpose of the treaty and violates international law, as international bodies have repeatedly held that military jurisdiction may never apply to cases involving human rights violations.²⁷

Reforming Domestic Law

The Fox administration has promoted a variety of legislative efforts aimed at bringing Mexico’s domestic laws into harmony with its international obligations. In some cases, it has helped to ensure the adoption of new laws that refer explicitly to international human rights norms.  For example, the 2003 Federal Law to Prevent and Eliminate Discrimination (Ley Federal para Prevenir y Eliminar la Discriminación) specifically establishes that the law must be interpreted in light of international norms and recommendations issued by international bodies.²⁸   Similarly, the Federal Law on Transparency and Access to Official Information (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental), which is discussed in detail in Chapter 3, created mechanisms to enforce the right of access to official information—an internationally recognized human right—within the executive, and mandated that other federal agencies had to adopt their own implementing regulations.  In some cases, the new law has mirrored the administration’s efforts to promote international human rights norms abroad.  For instance, Mexico adopted the 2005 General Law on Disabled People (Ley General de Personas con Discapacidad) at the same time it was promoting a draft United Nations convention on this same issue.

Unfortunately, the potential impact of some these new laws has been limited by the failure to establish effective implementing mechanisms.  For example, the National Council to Prevent Discrimination (Consejo Nacional para Prevenir la Discriminación) has limited power to implement the law to prevent discrimination since it may not issue recommendations or impose sanctions.  Furthermore, its limited budget prevents it from having a real, nation-wide impact.  Similarly, the Federal Institute on Access to Information (Instituto Federal de Acceso a la Información Pública) has promoted an impressive increase in transparency and access to information within the executive, but, as we describe in Chapter 3, it still faces tremendous challenges. 

And if Mexico has managed to incorporate international norms into new legislation, it has largely failed to incorporate them into existing laws.²⁹  One of the most ambitious efforts to make Mexican law consistent with international standards has been the proposed overhaul of the justice system, discussed in Chapter 5.  The proposal, which President Fox presented in March 2004, aims to develop a new, oral, adversarial justice system at the federal level.  It contains specific measures designed to eradicate the existence of widespread human rights abuses in Mexico, such as the use of torture to obtain confessions and the excessive use of preventive detention.  Though the Senate approved several pieces of the reform package in 2005, it left the most crucial ones pending.  Even those that have been adopted by the Senate must be ratified by the House of Representatives and state legislatures before they can become binding. 

Embedding International Norms in the Constitution

Another approach to incorporating international human rights norms into domestic law would be to make the country’s treaty obligations directly applicable and enforceable within routine legal proceedings. And, indeed, the Mexican Supreme Court held in November 1999 that the provisions of treaties ratified by Mexico not only are directly applicable, but take precedence over federal and state statutory law (but not over provisions of the Constitution).³⁰  Yet this ruling did not rise to the level of binding jurisprudence (under the Mexican system, four more similar rulings are required for it to acquire that status) and the notion of direct applicability of treaty obligations remains a controversial and largely unused concept in Mexico.

In 2002, the Fox administration created the Sub-Commission on Harmonization(Subcomisión de Armonización) to foster discussion among government and civil society representatives on how to address this ambiguity and promote the incorporation into domestic law of the human rights norms enshrined in treaties ratified by Mexico.³¹  The solution the group came up with was a constitutional amendment that would essentially grant these norms the same status as constitutional law, making them directly enforceable by allowing victims of violations to file injunctions (juicios de amparo) in federal courts.  The proposal would also allow federal authorities to assert jurisdiction over cases related to human rights abuses that would otherwise be tried by state courts.³² 

It was a bold proposal.  Unfortunately, however, the administration itself chose to gut it just before sending it to Congress (and without consulting the civil society representatives who had been involved in the process of developing it), by including language that limited its scope to those human rights obligations that are already recognized in the Mexican Constitution.³³  And, even this dramatically weakened version of the proposal has gotten nowhere in Congress and been effectively shelved. 

Congress did pass a more specific constitutional amendment, which accompanied this proposal, eliminating the death penalty in Mexico.  Since the amendment’s passage in June 2005, the military justice system and some state legislatures have also abolished the death penalty.³⁴

The National Human Rights Program

One concrete method for ensuring that these harmonization efforts would continue was the creation in December 2004 of the National Human Rights Program (Programa Nacional de Derechos Humanos, PNDH), which grew out of the diagnosis prepared by the UNHCHR.  The purpose of the PNDH was to “establish the basis of a government public policy on human rights.”³⁵  As a result of the PNDH, each federal government agency created its own liaison office to implement the PNDH.³⁶ 

It is difficult to measure the impact of this initiative because implementing a government public policy on human rights will take much longer than one year.  But it is possible to identify cases in which government agencies that had already begun to adopt measures to protect human rights continued to do so as part of the PNDH’s plan of action.  A good example of such harmonization is offered by the activities carried forward by the Attorney General’s Office to combat torture, which began prior to the PNDH but were incorporated as part of the new government policy.  In August 2003, this office adopted a medical and psychological evaluation system that implements the Istanbul Protocol.³⁷  After the creation of this mechanism at the federal level, the PGR signed agreements with various state attorney general offices to promote the implementation of this mechanism at the state level.  As of November 2005, it had done so with four states.³⁸ 

Unfortunately, however, the implementation of this mechanism has had a limited impact to date with respect to corroborating torture allegations or sanctioning public officials responsible for torture  As we suggest in Chapter 5, one reason for this limited impact may be the fact that the protocol has been applied to cases in which the torture took place months or years earlier, and there was no longer physical evidence of the abuse.  Also, as Mexican NGOs have pointed out, another problem appears to be the failure to ensure that the people applying the protocol are independent experts.³⁹ 

The Fox administration sought to increase the legitimacy of the proposed measures by inviting civil society participation in the design of the PNDH.  As with the discussion on drafting a constitutional reform, the government promoted, through the Interior Ministry, the creation of spaces for dialogue with civil society organizations about the most appropriate mechanisms to implement the diagnosis.  These opportunities for dialogue, while limited, represented a marked improvement over the secrecy with which government policy had been crafted in the old regime.⁴⁰  Yet some key NGOs have lamented the fact that the government failed to respect the initial terms set for the consultations and that the officials who participated in the meetings did not have the power to make any decisions.  Furthermore, the NGOs have expressed concern that very few civil society organizations from outside Mexico City were given an opportunity to participate in the process.⁴¹

Mechanisms to Ensure Continuity

The Fox administration has adopted some mechanisms aimed directly at ensuring effective implementation of the PNDH and of the other parallel initiatives that could bolster the incorporation of a human rights perspective in the Mexican government’s work.  However, these are very recent initiatives and results are just beginning to become apparent.

To ensure continuity of the measures proposed in the PNDH, the executive created a Follow-Up and Evaluation Committee (Comité Coordinador de Seguimiento y Evaluación) at the end of 2005.  Composed of government and civil society representatives, as well as a representative of the United Nations, it has a specific mandate to create indicators to measure the impact of the PNDH and to propose reforms to improve it.⁴²  The main problem with this initiative is that it is tied to the PNDH, which officially ends with the Fox administration.  Therefore, it could be abandoned by the next administration. 

In December 10, 2004, the Interior Ministry and the governments of all the states in Mexico signed a National Agreement on Human Rights (Acuerdo Nacional de Derechos Humanos).  This agreement expresses their commitment to promoting and defending human rights, and is a first step towards bilateral agreements between the federal government and states to promote compliance with various PNDH recommendations at the state level.⁴³ 

There have also been other parallel initiatives that aim at increasing government adherence to human rights norms.  One is the passage, in 2003, of the Law on Professional Career Service in the Federal Public Administration (Ley del Servicio Profesional de Carrera en la Administración Pública Federal).  Based on this law, the Interior Ministry and the Ministry of Public Administration (Secretaría de la Función Pública)created a capacity-building program on human rights.⁴⁴  The executive also created a Manual to Introduce a Human Rights Perspective in Public Policy (Manual para Introducir la Perspectiva de Derechos Humanos en las Políticas Públicas), which is mandatory for all federal government agencies.  And, as part of the government’s National Program on Education 2001-2006, the executive created an Educational Program on Human Rights (Programa de Educación en Derechos Humanos) with the purpose of including human rights in various educational textbooks for primary and secondary schools.⁴⁵  Finally, in 2006, Mexican universities issued a Universities’ Declaration in Favor of a Human Rights Culture with the purpose of including a human rights perspective in higher education.⁴⁶

Under President Fox’s administration, the government has also set up some permanent structures—thematic commissions within the executive branch—that do not depend exclusively on the will of the president.  For example, the government transformed the National Indigenous Institute (Instituto Nacional Indigenista, INI) into the National Commission for the Development of Indigenous Populations (Comisión Nacional para el Desarrollo de los Pueblos Indígenas, CDI).  Unlike the INI, the new CDI was created with the purpose of influencing public policy.  While it continues to work on certain INI projects aimed at assisting indigenous populations, the CDI also works with all federal government agencies to ensure that various public policies respect indigenous rights and cultural diversity.⁴⁷  Other institutions also seek to affect the way the federal government addresses specific issues across the board, such as non-discrimination and women’s rights.⁴⁸

Recommendations

Mexico’s new approach to human rights in its foreign policy represents an important break from the past.  Yet this approach is neither enshrined in law nor the product of a formal political consensus.  It could be abandoned by the next administration as easily as it was launched by the present one.  Should that happen, Mexico would greatly diminish the contribution that international scrutiny can make in exposing the country’s human rights problems and generating pressure for much-needed reform.

The next administration should pursue a foreign policy that encourages international scrutiny of human rights issues in Mexico.

1)  Continue the policy of openness to international scrutiny

The next administration’s foreign policy should recognize the universality of human rights values and reject the notion that promoting national sovereignty is more important than protecting basic human rights. 

Specifically, the next administration should repudiate the use of the principle of noninterference as an excuse to limit international scrutiny of human rights issues. It should encourage and facilitate visits and inquiries by international rights monitors, and provide these monitors with as complete information as possible regarding human rights practices.

2)  Establish a permanent office of the UNHCHR in Mexico

The next administration should ensure that the UNHCHR continues to play a constructive role in promoting human rights in Mexico by signing a new agreement with the High Commissioner to establish a permanent office in Mexico. 

The UNHCHR currently carries out several valuable projects in Mexico.  Yet, given the lack of a permanent office, it has limited ability to engage in long term efforts to improve human rights practices in the country.  A permanent UNHCHR presence would help to ensure the continuity of the efforts currently underway and make it more difficult for other administrations to abandon them or reverse the country’s current openness to international scrutiny of human rights issues.

3)  Prioritize the implementation of measures proposed in the National Human Rights Program (PNDH)

The next administration should instruct the agencies within the executive branch to implement the PNDH.  The administration should also establish an interdisciplinary committee composed of representatives from government institutions, Mexican civil society, and international monitoring bodies, to perform a careful evaluation of the PNDH.  The committee’s mandate should be to update and strengthen the PNDH where necessary and create indicators to measure the state’s progress in meeting its goals. 

It is crucial that the Mexican government ensure the participation of a wide range of civil society representatives in this process to enhance the quality and legitimacy of the resulting human rights policies.